Michael Scott Williams v. State

IN THE
TENTH COURT OF APPEALS
No. 10-09-00316-CR
MICHAEL SCOTT WILLIAMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 06-01734-CRF-85
MEMORANDUM OPINION
Appellant Michael Scott Williams pleaded guilty to five counts of indecency with
a child by contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011). The trial
court deferred an adjudication of guilt and placed Williams on community supervision
for eight years. The State subsequently filed a motion to adjudicate guilt. Williams
pleaded “not true” to all the allegations. The trial court adjudicated Williams guilty and
sentenced him to ten years’ imprisonment for each indecency count, to run
concurrently. This appeal ensued. We will affirm.
In his first issue, Williams contends that the trial court abused its discretion in
finding that the State met its burden of proving that he violated the conditions of his
community supervision by a preponderance of the evidence.
A determination of an adjudication of guilt is reviewable in the same manner as
that used to determine whether sufficient evidence supported the trial court’s decision
to revoke community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)
(Vernon 2010). The State must prove by a preponderance of the evidence that a
defendant violated the terms of his community supervision. Rickels v. State, 202 S.W.3d
759, 763-64 (Tex. Crim. App. 2006). A preponderance of the evidence means “that
greater weight of the credible evidence which would create a reasonable belief that the
defendant has violated a condition of his probation.” Id.
Considering the unique nature of a revocation hearing and the trial court’s broad
discretion in the proceedings, the general standards for reviewing sufficiency of the
evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003,
pet. ref’d). Instead, we review the trial court’s decision regarding community
supervision revocation for an abuse of discretion and examine the evidence in a light
most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.
App. 1981). The trial judge is the trier of fact and determines the credibility of the
witnesses and the weight to be given to the testimony. Id. If the State’s proof is
sufficient to prove any one of the alleged community supervision violations, the
revocation should be affirmed. Pierce, 113 S.W.3d at 436.
Williams v. State Page 2
In the motion to adjudicate guilt, the State alleged that Williams violated the
terms and conditions of his community supervision as follows:
Condition (7): In that the defendant failed to pay a fine, costs of Court and
attorney fees, totaling $5,306.50 in equal monthly installments of $100.00
for the months [sic] of December 2008;
Condition (8): In that the defendant failed to pay Crime Stoppers and
substance abuse evaluation fee to the Brazos County Community
Supervision Department totaling $30.00 in equal monthly installments of
$30.00 for the month of September 2006;
Condition (9): In that the defendant failed to pay $50.00 per month in
supervision fees for the months of April through December 2007, January
through December 2008 and January 2009;
Condition (12): In that the defendant failed to perform 240 hours of
community service at a rate of 10 hours per month;
Condition (13): In that the defendant, on or about October 7, 2008, failed
to abstain from the use of alcoholic beverages;
Condition (41): In that the defendant, on or about September 21, 2007,
viewed pornography;
In that the defendant, on or about October 21, 2008, viewed pornography.
At the hearing on the motion to adjudicate guilt, only one witness testified—Charlie
Russ, Williams’s Brazos County probation officer from the time he had been placed on
probation in August 2006. Russ testified that Williams had lived in Harris County some
of the time he had been on probation and had another probation officer there, but Russ
had kept up to date with Williams’s case, and the Harris County probation officer had
notified Russ monthly of any changes.
As for Condition 7 of Williams’s probation, Russ testified that Williams was
required to pay $100 a month toward his fines and court costs. Russ stated that
Williams v. State Page 3
Williams was up to date on his payment on the day of the adjudication hearing, but
when asked about what Williams had paid at the time the motion to adjudicate guilt
was filed, Russ replied, “She just said that he was delinquent but didn’t give me a
specific amount.”
As for Condition 8, Russ testified that Williams did not make the payment in
September 2006 for the fee required; he was delinquent $14.72 in paying Crime Stoppers
and $6.93 in paying the evaluation fee. Likewise, as for Condition 9, Russ stated that
Williams was delinquent $1,020.13 in paying his probation fees. Williams had a full-
time job the entire time he was on probation, and he never told Russ that he could not
afford to pay for the fees.
As for Condition 12, Russ testified that Williams was required to perform ten
hours per month of community service and that if Williams had been performing
community service at a rate of ten hours per month, he would have completed it, but
Williams still had four and one-half hours left to complete. On cross-examination,
however, Russ stated that the community service records had come from the probation
officer in Houston, that he had no personal knowledge of the community service, and
that the record could be wrong.
As for Condition 13, Russ stated that Williams admitted drinking an alcoholic
beverage on October 7, 2008. When asked how that came about, Russ said that he had
had a conversation with Williams after a polygraph1 when Williams admitted to
1Condition 40 of Williams’s probation required him to “[s]ubmit to polygraph testing at your
expense at the direction of and within 30 days of said request by the supervising officer/aide, to assist in
determining compliance with the conditions of supervision, and/or facilitating mental health treatment.”
Williams v. State Page 4
drinking alcohol. Russ also testified that Williams admitted to several instances in
which he viewed pornography, which is a violation of Condition 41 of his probation.
On cross-examination, Russ stated that Williams would come into his office and they
would discuss the latest admissions that he made during the polygraph exams, and
Williams admitted to looking at pornographic images on September 21, 2007 and
October 21, 2008. In fact, he admitted to looking at pornography four or five times over
the three years that he was on probation.
In the first part of his second issue, Williams contends that the trial court erred in
admitting any testimony regarding the polygraph examination given to him as a
condition of probation and, therefore, that the testimony should not be used as evidence
of a violation of probation. Williams first points to the following exchange:
[PROSECUTOR]: Okay. And that was a situation where what? What
happened?
[WITNESS]: He -- it was situation where I got a polygraph result, and --
[DEFENSE COUNSEL]: Object to testimony regarding the
polygraph test, Judge.
THE COURT: As to result sustained.
[PROSECUTOR]: Without going into his result, did you have a
conversation with him after a polygraph?
[WITNESS]: Yes.
[PROSECUTOR]: And did he admit to drinking alcohol to you?
[WITNESS]: Right. Yes, he did.
Williams v. State Page 5
[PROSECUTOR]: And along those same lines, on Condition 41 -- let’s see
here. Is the defendant allowed to view any form of pornography on his
probation?
[WITNESS]: No, sir.
[PROSECUTOR]: And has he?
[WITNESS]: Yes, sir.
[PROSECUTOR]: Do you have a record of when he did that?
....
[WITNESS]: He’s specifically told me -- I addressed the issue with him.
He admits that a brother and coworkers would send him e-mails and that
he’s even looked on his supervisor’s computer and specifically has seen
pornographic images.
Williams complains that this testimony “about admissions made by the
Appellant as to drinking alcohol and viewing pornography are [sic] a direct result of the
polygraph tests and should have been inadmissible.” However, Williams’s objection
was sustained. He did not further pursue his objection to an adverse ruling. To
preserve a complaint for review, a defendant must receive an adverse ruling on his
objection. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). Furthermore,
Williams did not thereafter specifically object to the purported admissions because they
included polygraph evidence nor did Williams obtain a running objection to the
polygraph evidence. To preserve an issue for appellate review, a timely and specific
objection is required. TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. EVID. 103(a)(1); Jasso v. State,
112 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (explaining that
the “standard set by our high court for the timely assertion of objections is both
demanding and unforgiving”); see Graham v. State, 3 S.W.3d 272, 285 (Tex. App.—Fort
Williams v. State Page 6
Worth 1999, pet. ref’d). Therefore, Williams failed to preserve his complaint about this
testimony.
Williams also complains of Russ’s testimony on cross-examination because Russ
“admit[ted] that the admissions and subsequent conversations as to viewing
pornography came from the polygraph tests.” For example, the following exchange
took place during defense counsel’s cross-examination of Russ:
[DEFENSE COUNSEL]: Okay. How frequently?
[WITNESS]: Well, it seems like every time he would have a polygraph, he
would make admissions that this is what’s happened, this is what’s
happened. Every time -- every polygraph result that I’ve got, the
admissions were made, “Yes, I’ve looked at pornography.”
[DEFENSE COUNSEL]: Total of four?
[WITNESS]: Four or five.
[DEFENSE COUNSEL]: Over three years?
[WITNESS]: Uh-huh.
[DEFENSE COUNSEL]: Okay. And you say that’s a pattern?
[WITNESS]: Well, I’ve got to assume that each time he is questioned
during a polygraph exam about the use of pornography and he makes
admissions, my logical conclusion is that it’s a -- I’m sure he’s carrying it
on every day, every week, because it’s -- it can’t be just a coincidence
during a polygraph exam.
[DEFENSE COUNSEL]: Okay. You said two words there: There’s a --
you have to assume and the logical inference. Do you have any proof that
--
[WITNESS]: No, I don’t have any proof. I’m just -- based on the fact that
he’s always admitted to looking at pornography during a polygraph
exam.
Williams v. State Page 7
[DEFENSE COUNSEL]: Okay.
Williams again made no specific objection to any of this testimony as improper
polygraph evidence; therefore, Williams failed to preserve his complaint about this
testimony as well. See TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. EVID. 103(a)(1); Jasso, 112
S.W.3d at 813; see Graham, 3 S.W.3d at 285.
The only exchange in which Williams made a specific objection about polygraph
evidence and obtained an adverse ruling is as follows:
[PROSECUTOR]: In your conversations and based on his manner and
demeanor and just the way he’s talking about it, did it seem like it was
happening more than just these isolated incidents; or did it sound more
like a pattern to you?
[WITNESS]: Well, he would always call me after a polygraph result –
....
[WITNESS]: He would call me and let me know that he didn’t do very
well on the polygraph –
[DEFENSE COUNSEL]: Object to any statements regarding
polygraph, whether it’s an admission or not. I don’t think it’s relevant in
this case.
THE COURT: Overruled.
[WITNESS]: He would just tell me that he either didn’t pass it or he made
admissions that someone sent him an e-mail, looking at pornography. So
we talked a lot over the phone because he would call me and tell me what
was going on and what was bothering him, the struggles he was having
and he was always worried and concerned about not being able to pass
the polygraph and we would talk about some of the admissions that he
made.
But even assuming that the trial court erroneously admitted this testimony
regarding the polygraph over proper objection, Williams was not harmed by its
Williams v. State Page 8
admission. See TEX. R. APP. P. 44.2(b). As shown above, other polygraph testimony was
received into evidence without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex.
Crim. App. 1998). And the unobjected-to admissions were sufficient for the trial court
to find, in its discretion as sole fact-finder, that Williams violated at least one condition
of his community supervision by a preponderance of the evidence. Pierce, 113 S.W.3d at
436. We accordingly overrule Williams’s first issue and the first part of his second
issue.
In the second part of Williams’s second issue, he contends that the trial court also
erred in admitting testimony regarding the polygraph examination during the
punishment phase. During the punishment phase, Williams’s counsel made an oral
motion in limine “with regards to any polygraph testing; results; interpretations; or any,
I guess, conclusions drawn from those polygraph tests or results due to the fact they
would not be admissible in court.” The trial court sustained the motion as to the results
and conclusions. The prosecutor then stated, “That’s fine. I anticipate -- any
conversation these two -- the defendant and the counselor had subsequent to a
polygraph is what I would anticipate talking about,” and the court replied, “All right.
As I understand that motion, it doesn’t apply to those statements -- . . . -- unless they are
involving the results of the polygraph.”
A motion in limine normally preserves nothing for review. Fuller v. State, 253
S.W.3d 220, 232 (Tex. Crim. App. 2008). “For error to be preserved with regard to the
subject of a motion in limine, an objection must be made at the time the subject is raised
during trial.” Id. Williams made no objection to the polygraph testimony at the time it
Williams v. State Page 9
was raised during the punishment phase; therefore, Williams failed to preserve his
complaint about this testimony as well. We overrule the second part of Williams’s
second issue.
Having overruled both of Williams’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 17, 2011
Do not publish
[CR25]
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